Vimeo OTT Terms of Service

1 Overview

This Terms of Service Agreement (the “Agreement”) is between VHX Corporation (“Vimeo OTT,” “we” or “us”) and you (“Producer” or “you”).

2 Account Registration

To offer Programs to consumers, you must create a producer account with Vimeo OTT. You must provide a valid email address and other information that we may require. You represent and warrant that all information provided by you is accurate. You are solely responsible for maintaining the security of your account and for all activity that occurs under your account. You must notify us immediately if you suspect any unauthorized access to or use of your account.

If Producer is a business entity, the account must be in the name of the business entity, and the person(s) creating and maintaining the account on behalf of the Producer must have the authority to bind the Producer to this Agreement.

If Producer is an individual, Producer must be at least 18 years old or the age of majority in the individual’s jurisdiction of residence, whichever is greater. By creating an account, you represent that you are at least 18 years old or the age of majority in the jurisdiction where you reside.

3 Privacy

Vimeo OTT’s policies concerning the information we collect about you, how we use it, and with whom we share it is set forth in our Privacy Policy.

In allowing consumers to register an account with you, you may receive information concerning those consumers. Your collection, use, and disclosure of such consumer information is governed by our Acceptable Consumer Privacy Practices Policy.

4 Vimeo OTT Service

4.1 Sales Options

You may offer Programs to consumers through the Vimeo OTT Service using the transaction options set forth below:

Transactional video on demand (TVOD): Individual Programs may be offered for Rental or Purchase.

Rental (also known as VOD (video on demand)): After paying the stated fee, the consumer may stream the Program an unlimited number of times during the stated rental period.

Purchase (also known as EST (electronic sell through)): After paying the stated fee, the consumer may stream the Program an unlimited number of times; if offered by the Producer, the consumer may download the Program.

Subscription video on demand (SVOD): For a recurring fee, the consumer may stream Programs offered within the Producer’s subscription channel an unlimited number of times during the consumer’s subscription period.

For each offering, you must select: (i) the Programs to be offered; (ii) transaction options, retail prices, and rental period or subscription period, as applicable; and (iii) the distribution territory. You may set a free trial period for subscriptions not to exceed one month.

4.2 Taxes and Refunds

Vimeo OTT may, but will not be required to, provide refunds to consumers where: (i) Vimeo OTT reasonably believes that the consumer was unable to stream the Program in a manner consistent with the purchase terms; (ii) Vimeo OTT suspects fraud; (iii) the Program is subject to a notice of alleged intellectual property infringement; or (iv) you have breached the terms of this Agreement.

4.3 Free Transactions and Off-Vimeo OTT Sales

You may use the Vimeo OTT Service to distribute Programs to customers (i) on a free basis, or (ii) who have purchased the Program outside of the Vimeo OTT Service.

4.4 Program Sites and Program Apps

You may offer, sell, and distribute Programs through Program Sites and Program Apps that Vimeo OTT will host and maintain. You must provide all content that will be displayed on the Program Site and/or Program Apps. Program Site URLs are provided on an as-available basis.

5 Economics

5.1 Fees

You agree to pay the fees set forth in our fee schedule according to the payment terms set forth therein. Vimeo OTT may change its fees or add new fees at any time on a prospective basis.

5.2 Producer Revenue

You are entitled to receive the amounts actually collected by Vimeo OTT from the sale of your Programs through the Vimeo OTT Service less applicable taxes, Vimeo OTT’s fees, and any chargebacks or refunds (such net amount, the “Producer Revenue”). Vimeo OTT will pay you Producer Revenue on a monthly basis within 30 days after the end of each month. Vimeo OTT reserves the right to make adjustments to subsequent payouts. Payouts of Producer Revenue in non-U.S. dollar amounts are subject to a 2% foreign exchange fee.

Vimeo OTT may delay or withhold all or any portion of a Producer Revenue payment: (i) if Vimeo OTT reasonably believes that a portion must be withheld pursuant to U.S. tax law; (ii) if Vimeo OTT is investigating suspicious purchases or a breach of the terms hereof; or (iii) to provide a reserve for anticipated refund requests and chargebacks where a Program has been withdrawn by the Producer or removed by Vimeo OTT.

5.3 Reporting and Audit Rights

Reports regarding Producer Revenue will be provided through the Vimeo OTT website. Upon 10 business days’ prior written notice to Vimeo OTT, you may appoint a nationally-recognized auditor to audit Vimeo OTT’s records with respect to your Producer Revenue. Any such audit must occur during Vimeo OTT’s normal business hours and may not occur more than once in any 12-month period. If the auditor determines an underpayment and Vimeo OTT does not dispute the underpayment, (i) Vimeo OTT will promptly pay the underpaid amount; and (ii) if the aggregate underpayment exceeds the greater of $100 or 5% of the amounts paid to date, Vimeo OTT will reimburse you for your reasonable out-of-pocket audit costs, provided, however, that this clause will not apply to amounts that have been disputed by Vimeo OTT or properly withheld under the terms of this Agreement.

6 Licenses and Intellectual Property

6.1 Licenses Made by Producer

Programs: By uploading or otherwise submitting any Program to Vimeo OTT, you grant to Vimeo OTT all necessary rights to offer, sell, and distribute the Program to consumers. You further grant each consumer who makes a purchase (or receives a valid access from you) a limited license to stream and/or download the Program (if offered) for the consumer’s personal entertainment in accordance with the terms stated at the time of purchase.

Other Content: By uploading or otherwise submitting any Content to Vimeo OTT, you grant to Vimeo OTT all necessary rights to make such Content available to Consumers through the Vimeo OTT Service (including through emails sent by Vimeo OTT) for the purpose of offering, selling, and distributing your Programs. “Content” means any creative assets (such as text, images, photographs, artwork, and audiovisual works), branding elements (such as trademarks and logos), and links to third party websites and applications, but does not include Programs.

Duration: The licenses made by you will continue during the Term. You may withdraw a Program from the Vimeo OTT Service at any time. If you do so, Vimeo OTT will cease offering your Programs for sale to new consumers, but consumers who purchased a Program prior to its withdrawal may continue to view the Program according to the terms stated at the time of purchase. You may delete a Program Site or Program App at any time. If you do so, Vimeo OTT will, within a commercially reasonable period of time, make the Program Site or Program App unavailable to new users, provided that Vimeo OTT may continue to support the Program Site or Program App for consumers who previously purchased Programs.

6.2 Representations and Warranties

You represent and warrant that: (i) you have the right and authority to grant the above licenses; (ii) you have cleared the use of any third party works or trademarks that are incorporated into your Programs and Content for distribution as contemplated herein; (iii) all persons appearing recognizably in your Programs and Content have provided valid releases to appear; (iv) neither Vimeo OTT nor any purchaser of a Program will need to obtain any licenses or permissions from a third party or pay any amounts to any third party in order to use or exploit the Programs or Content as contemplated herein; (v) you are not breaching any agreement with a third party by entering into this Agreement and granting the licenses set forth herein; (vi) your Programs and Content (and their use and exploitation as contemplated herein) will not infringe any third party right, including any intellectual property or privacy right; and (vii) your Programs and the Content will comply with Section 7 of this Agreement.

6.3 Vimeo OTT Licenses

Subject to the terms hereof, Vimeo OTT grants you a limited, revocable license to use the Vimeo OTT Service (which includes the Vimeo OTT website, your custom Program Sites, your custom Program Apps, and our API) for the purpose of offering, selling, streaming, and distributing Programs to consumers.

6.4 No Exclusivity; All Rights Reserved

All licenses granted herein are non-exclusive. As between the parties, you own all right, title, and interest in and to your Programs and Content, and Vimeo OTT owns all right, title, and interest in and to the Vimeo OTT Service, including the Vimeo OTT video player, Vimeo OTT’s application programming interface (API), your Program Sites and Program Apps (but not the Content therein), and all source code for the Vimeo OTT Service. Except as expressly set forth in this Agreement, neither party assigns any ownership interest in its intellectual property to the other party.

6.5 Copyright Policy

We take claims of copyright infringement seriously. Please refer to our Copyright Policy for an explanation of the steps you should take if you believe any materials made available through Vimeo OTT, or any element thereof, infringes your copyright.

7 Acceptable Use Policy

You may not upload or otherwise submit any Programs or Content that:

Includes pornographic content;

Harasses or advocates harassment of another person;

Promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

Attempt to circumvent any technical measures (including digital rights management) that we may employ;

Take any measures to interfere with or damage the Vimeo OTT Service;

Spam or harass Vimeo OTT or any other user;

Use any fraudulent, deceptive, or misleading practices; or

Engage in any illegal activities.

Vimeo OTT reserves the right to remove or block any Program or Content that violates this section.

8 Term and Termination

This Agreement begins when you create a producer account and continues until terminated by you or us in accordance with the terms hereof (the “Term”). You may terminate this Agreement at any time by deleting your account as instructed on the Vimeo OTT website. Vimeo OTT may terminate this Agreement at any time by providing you with 30 days’ notice. Either party may terminate this Agreement if the other party breaches any term hereof and fails to cure that breach within 15 days of the non-breaching party’s notice. In addition, Vimeo OTT reserves the right to suspend, restrict, and terminate accounts without notice for any violation of our Acceptable Use Policy (Section 7).

9 Disclaimers

YOUR USE OF THE Vimeo OTT SERVICE IS AT YOUR OWN RISK. Vimeo OTT PROVIDES THE Vimeo OTT SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. Vimeo OTT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Without limiting the above, Vimeo OTT makes no representations or warranties concerning:

Any financial outcome resulting from your use of the Vimeo OTT Service;

The efficacy of any geo-filtering that we might use to detect the location of consumers;

The efficacy of any digital rights management (DRM) methods that we might use;

The availability of the Vimeo OTT Service in a particular jurisdiction;

The availability of the Vimeo OTT Service for any particular device, operating system, or browser;

The availability of the Vimeo OTT Service on an uninterrupted or error-free basis at all times;

The continued support for a particular feature of the Vimeo OTT Service; or

The accuracy of consumer information and your ability to use consumer information.

10 Limitation of Liability

To the maximum extent permitted by law, Vimeo OTT, its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners shall not be liable for: (i) any direct, indirect, incidental, special, consequential, or exemplary damages, including damages for loss of profits, goodwill, use, data, or other intangible losses; (ii) damages relating to any disputes between a consumer and you; or (iii) damages exceeding the aggregate amounts paid by or to you by Vimeo OTT over the 12 months preceding the filing of your claim. The foregoing limitations apply to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not Vimeo OTT has been informed of the possibility of such damage, and whether a remedy set forth herein is found to have failed its essential purpose.

11 Indemnification

You shall indemnify and defend Vimeo OTT and its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners from any liability, claim, demand, damages, losses, or costs (including reasonable attorneys’ fees) arising from or related to any third party claim: (i) asserting a breach of any term of this Agreement by you; (ii) asserting a violation of any law by you; (iii) concerning your Programs or Content; or (iv) concerning your use of consumer information.

12 BINDING ARBITRATION AND GOVERNING LAW

Binding Arbitration with Vimeo OTT!: You and Vimeo OTT agree that any dispute arising out of or relating to this Agreement or your use of the Vimeo OTT Service shall be resolved by BINDING ARBITRATION administered by JAMS.

Binding Arbitration with Producers: To the extent that a consumer has agreed to resolve disputes with producers through arbitration in his or her agreements with Vimeo OTT, you agree that any dispute with a consumer arising out of or relating to a consumer’s purchase or viewing of one of your Programs or subscription channels shall be resolved by BINDING ARBITRATION administered by JAMS. Please be advised that consumers maintain the right to file small claims actions.

Waiver of Class Action Claims: By agreeing to arbitrate your claims against Vimeo OTT and consumers, (i) YOU GIVE UP YOUR RIGHT TO GO TO COURT AND HAVE YOUR CLAIMS (OR CLAIMS AGAINST YOU) TRIED BY A JUDGE OR JURY (except for consumer suits that may be filed in small-claims court); and (ii) YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.

Court Proceedings: Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation (except for small-claims court actions) shall be commenced only in the federal or state courts located in New York County, New York. You hereby irrevocably consent to the jurisdiction of those courts for such an action and, to the extent permitted by law, both Vimeo OTT and you WAIVE ANY RIGHT TO A TRIAL BY JURY in such an action.

Governing Law: This Agreement shall be governed by the laws of the state of New York without regard to principles of conflicts of law, provided that this arbitration clause shall be governed by the Federal Arbitration Act. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

12 General Terms

No Waiver: The failure of Vimeo OTT to exercise or enforce any term of this Agreement will not constitute a waiver of such term.

Provisions Severable: If any term of this Agreement is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining terms will remain in full force and effect.

Interpretation: Headings are provided for convenience and shall not be used to construe the terms hereof.

Assignment: This Agreement is binding on the parties and their successors, heirs, and permitted assigns. This Agreement is not assignable or transferable by you without our prior written consent.

Relationship: The parties are independent contractors as to one another. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

No Third Parties: No third parties will have any rights under this Agreement, except that indemnified parties may enforce indemnification rights and consumers may enforce the arbitration clause.

Force Majeure: Vimeo OTT will not be liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; natural disasters; wars; civil or military disturbances; sabotage; strikes; epidemics; riots; power failures; computer failure; loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service; accidents; labor disputes, acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation.

U.S. Export Compliance: You may not use the Vimeo OTT Service if (i) you are personally subject to U.S. government sanctions or (ii) you are located in a country that is subject to U.S. Government sanctions such that your use of the Vimeo OTT Service would violate U.S. law. You represent and warrant that you are not subject to such sanctions.

Notices: You agree to receive notices via the email address that you used to create an account or via the Vimeo OTT website.

Entire Agreement: This Agreement incorporates the following agreements and policies:

Privacy Policy

Acceptable Consumer Privacy Practices Policy

Copyright Policy

Except as set forth above, links to pages on the Vimeo OTT website and third party materials are for convenience only and do not form part of this Agreement.

This Agreement sets forth the entire understanding between the parties and supersedes all prior agreements regarding the same. This Agreement may only be modified by us. Any changes will be posted to the Vimeo OTT website and will apply prospectively.

Contact Us: If you have any support questions, please contact us at sell@vimeo.com. For all other questions regarding this Agreement, please contact us at:
Vimeo OTT Corporation
555 West 18th Street
New York, New York 10011
Attn: Legal Dept.
legal@vimeo.com